The facts are fully set forth in our previous opinion on direct appeal. This is a summary to give a context to our discussion. On the early morning of September 7, 1997, at 2:30 a.m., defendant entered the victim's taxi and asked A.H. to take him to various places. After about forty minutes, he asked to be taken to an automatic teller machine (ATM). Defendant had unsuccessfully attempted to get money from the ATM. He returned to the taxi, opened a rear passenger door and stabbed A.H. in the back and the forearm. A.H. tried to drive away, but the taxi slammed into a concrete wall. A.H. sustained injuries to his chest and head. Defendant fled with the victim's money.

The police arrived and spoke to A.H. A search of the backseat floor of the taxi revealed a bank card.

On September 16, 1997, a detective went to the victim's home and showed him a photographic array that included a photograph of defendant. A.H identified defendant, saying that "it was him one hundred percent . . . ." The next day, the detectives showed the victim a more recent photograph of defendant and he again indicated that was his assailant.

At trial, A.H. was presented with the photo array card, and again identified defendant's photo as that of his assailant.

A.H. testified that he had told police his attacker's skin was dark, by which he meant tan. Defendant's trial counsel questioned the detectives who had assembled the photo array as to why the pictures were all of Hispanic males. When the assistant prosecutor objected to that line of questioning, trial counsel stated at side bar that she chose not to have a Wade*fn2 hearing so that she could "approach it in this manner," and "felt it was better." Her strategy was to argue misidentification to the jury. Jersey City Police Lieutenant Robert O'Callahan testified for the State that the bank card found in A.H.'s cab had defendant's name on it. Another detective testified that it had expired in August 1997.

The jury convicted defendant on all counts, we rejected his contentions on direct appeal as without merit, and the Supreme Court denied certification.

Defendant filed a PCR petition, and an amended petition was filed by designated counsel. Defendant argued in his brief that he was denied: the effective assistance of trial counsel and appellate counsel; rights pursuant to Article 36 of the Vienna Convention on Consular Relations; his constitutional rights to testify on his own behalf, and to present a defense; the right to trial by an impartial jury and his due process right because of improper charges to the jury. Defendant also argued that his petition for PCR "should not be barred by procedural considerations"; and that "the cumulative effect of the errors complained of rendered the trial unfair." Defendant requested an evidentiary hearing on his PCR petition.

On November 20, 2008, Judge Sheila A. Venable heard oral argument, although there was no evidentiary hearing. She denied the petition in a thorough oral decision on December 4, 2008, and in a December 10, 2008 order.

On appeal, defendant contends:

THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND BECAUSE THE PCR COURT MISAPPLIED ITS DISCRETION IN ATTRIBUTING THE COMPLAINED ABOUT DEFICIENCIES OF TRIAL COUNSEL TO LEGITIMATE TRIAL STRATEGY.

DENYING [PCR] VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN [PCR].

A. Trial Counsel's Failure To Investigate The ATM Machine Used By The Actor, Defendant's Bank Records, And The Surveillance Cameras At The Bank Resulted In Ineffective Assistance Of Counsel.

B. Trial Counsel's Failure To Adequately Communicate With Defendant Prior To And During Trial Resulted In Ineffective Assistance Of Counsel.

E. Defendant's Rights Under Art. 36 Of The Vienna Convention On Consular Relations Were Wrongfully Denied.

F. Defendant Was Denied His Constitutional Right To Testify On His Own Behalf.

G. Defendant Was Deprived His

Constitutional Right To Present A Defense.

Defendant argues that an evidentiary hearing is warranted because a prima facie case of ineffective assistance of trial counsel was demonstrated through trial counsel's various alleged errors that were not the product of mere tactical choices. We disagree.

"Post-conviction relief is a safeguard that ensures that a defendant was not unjustly convicted." State v. McQuaid, 147 N.J. 464, 482 (1997). Analogous in New Jersey to the federal writ of habeas corpus, State v. Preciose, 129 N.J. 451, 459 (1992), "PCR provides a defendant with a means to challenge the legality of a sentence or final judgment of conviction which could not have been raised on direct appeal." McQuaid, supra, 147 N.J. at 482. "A PCR hearing 'is not a pro forma exercise, but a meaningful procedure to' root out mistakes that cause an unjust result either in a verdict or sentence." State v. Hess, 207 N.J. 123, 144-45 (2011) (quoting State v. Feaster, 184 N.J. 235, 249 (2005). Further, "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Preciose, supra, 129 N.J. at 460. To that end, Rule 3:22-4(a)(1) provides an exception to the general prohibition against claims that could have been raised in a direct appeal. A claim may be heard if "enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice." R. 3:22-4(a)(2).

To establish a prima facie case for ineffective assistance of counsel, a defendant must show a reasonable likelihood of success under the test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland/Fritz test, a defendant must show (1) that representation by his attorney fell below an objective standard of reasonableness, and (2) that, but for counsel's errors, the outcome at trial would have been different. Strickland, supra, 466 U.S. at 690, 698, 104 S. Ct. at 2066, 2068, 80 L. Ed. 2d at 695, 698; Fritz, supra, 105 N.J. at 58.

Here, defendant alleges the following specific instances of trial counsel's failures or errors, individually and cumulatively, led to his conviction: (1) failure to conduct a reasonable pre-trial investigation; (2) failure to communicate sufficiently with defendant before and during trial; (3) representations made in the opening statement that misled the jury; (4) failure to request a cross-racial identification charge; and (5) failure to file a Wade motion. He also alleges ineffective assistance of appellate counsel on his direct appeal.

Pre-trial Investigation

Defendant contends trial counsel failed to adequately perform a pre-trial investigation on three issues: (1) finding/interviewing a witness; (2) obtaining camera footage from the ATM; and (3) acquiring his bank records from the night of the crime. We disagree.

"[W]hen a [PCR] petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999).

Here, defendant alleges that trial counsel failed to conduct an investigation which would have led her to call Tykkeia Bacote ("Bacote"), a McDonald's employee, as a witness based on two statements Bacote gave to police. In the first, she was unable to give any identifying characteristics of the two persons she thought she saw running down the street following the cab crash. In the second statement, Bacote said a person she believed was in the drive-through of the McDonald's wearing an orange t-shirt and an orange baseball cap had told her about a cab running into a wall.

Defendant has not made clear what exculpatory value this witness could have provided at trial. A.H. testified at trial that defendant was wearing an orange t-shirt. Combined with Bacote's potential testimony that the person who told her a cab crashed was similarly dressed, the proof would only have reinforced the State's contention that defendant was present in the general area, not asleep at home, as defendant contended at trial. Bacote's statements were available to trial counsel, but she chose not to use them or call Bacote to the stand. That was a reasonable strategic trial decision.

Defendant next argues that trial counsel failed to investigate the presence of cameras at the ATM. However, the police investigation revealed that there were no cameras present at that machine. At the time, a company representative informed the police as such. Ten years later, in preparation for the PCR hearing, another inquiry was made to bank's new owners. A company representative stated that any tapes that may have been made would have been destroyed years ago. Defendant seizes on this admission as an implication that there were tapes at the time of the incident, and that trial counsel failed to acquire them. However, it is clear that the second inquiry generated a general company response regarding its policy of retaining security tapes and was not addressed to any particular tapes from that particular ATM. Indeed, the prosecutor who originally tried the case and who also argued against the PCR petition stated that he remembered visiting the location at the time and taking photos, none of which evinced a memory of any cameras at that location. Thus, we agree with Judge Venable's conclusion that there was no failure by trial counsel in not securing footage that did not exist.

Finally, defendant contends that trial counsel should have obtained his bank records for the period around the incident which would have demonstrated whether he attempted to use his ATM card that night. As was clearly presented at defendant's trial, the ATM card found in the cab had expired in the month before the incident. It is probable that this was the problem that A.H. testified to observing regarding defendant repeatedly inserting his card into the machine. If it was expired, it would not work. Defendant has not show how trial counsel's obtaining such records would have proven exculpatory.

Ultimately, under Strickland/Fritz, defendant has presented no evidence that there was any failure by trial counsel to conduct an investigation, or present witnesses there from, which would have altered the outcome of his trial.

Trial Counsel's Communication with Defendant Defendant alleges that he received ineffective assistance of counsel because he was not provided with an interpreter prior to and during his trial. In that regard, defendant alleges that any communication he did have with trial counsel was not adequate to prepare him for trial. We disagree.

A trial court may make a determination, in its "sound discretion," as to the necessity of an interpreter at various stages of a proceeding. See State v. Rodriguez, 294 N.J. Super. 129, 138 (Law Div. 1996); see also State in Interest of R.R., 79 N.J. 97, 117 (1979). Here, the trial court determined that the defendant could understand English. Indeed, the record reflects that defendant spoke in English to the trial judge. In her opinion on the PCR petition, Judge Venable found that once the trial judge became aware that translation could be an issue, she appointed an interpreter in March 1998. We agree with Judge Venable that because such action occurred eight months before the trial, there was no injustice wrought upon defendant by way of an inability to communicate.

Defendant alleges that trial counsel did not meet with him enough to prepare him for trial. Moreover, when he did meet with trial counsel, the presence of other inmates or sheriff's officers prevented him from having a frank conversation of trial strategy. However, the record simply does not bear out this contention. Indeed, as noted by Judge Venable, defendant met with his assigned trial counsel on a series of dates in 1998: January 26, March 2, March 25, April 25, and October 9. Judge Venable also found that petitioner offered no evidence that trial counsel had not prepared for trial. Additionally, the trial record reflects a long period of time wherein trial counsel requested to use the jury room to speak with defendant regarding trial strategy and whether or not he would testify. Defendant does not present any support for his allegations of insufficient communication, and the record indicates that his trial counsel was knowledgeable about the case.

Trial Counsel's Opening Statement and Defendant's Testimony

Defendant contends that trial counsel's opening statement misled the jury because the witnesses promised were not presented. We disagree.

Our justice system provides trial counsel a great deal of discretion in the methods used to try a case. "Mere improvident strategy, bad tactics or mistake do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonnet, 132 N.J. Super. 186, 191 (App. Div. 1975). Moreover, in cases where the State's evidence was substantial, courts have declined to find reversible error from deficiencies in a defendant's trial counsel's opening and closing statements. See State v. Hightower, 120 N.J. 378, 407-08 (1990).

Here, defendant's trial counsel, despite claiming in her opening statement that defendant would explain how the bank card got in the cab, made the strategic decision not to present a defense. However, she had alluded to this strategy in the opening statement when she stated that defendant was not required to put on a defense. This was intended to remind the jury that the State bears the burden of proving every element of the crime. Even if this was misleading, it was not the basis for the conviction because the identification evidence was so strongly in the State's favor.

The prejudicial impact of this strategic decision was mitigated against in part by the trial judge, in consultation with trial counsel, when it was decided that the defense counsel would not formally state, "the defense rests." Instead, the judge would announce in passing that both sides had rested and move on to the next phase. This was a reasonable decision, and one which could simply have indicated to the jury that defendant did not believe the State had put on a case sufficient to merit his rebuttal. Furthermore, the trial court gave the proper jury charge, which defendant had approved, explaining that the jury was to take no negative inference from defendant's choice not to testify on his own behalf. This was not demonstrative of ineffective assistance of counsel, but rather an example of an engaged attorney making the decisions reposed to her in representation of her client.

Defendant further claims error in trial counsel's failure to have him testify. As Judge Venable noted, the trial judge queried defendant and trial counsel about whether he was going to testify. Defendant declared, "I am not going to testify," and indicated that he had discussed the matter with his trial counsel. The trial court accepted this representation. We agree with Judge Venable that "trial counsel not only met expectations but exceeded them as the duty to participate in such a decision is met once a defendant is informed of his right to testify."

Cross-Racial Jury Charge

Defendant contends that a cross-racial jury charge should have been given because of the distinction between the nationalities of himself, Ecuadorian, and his accuser, Egyptian. We are not persuaded by the contention.

At the outset, we note that the record does not establish that defendant and A.H. are of different races. "Race," "ethnicity" and "nationality" are very different concepts. They are not mutually exclusive. Thus, indicating that someone is an Egyptian or Ecuadorian national does not indicate what their race is. In short, Egyptians can be of different races. The same is true of Ecuadorians.

Our rejection of the contention is based on a different analysis. In State v. Cromedy, 158 N.J. 112, 132 (1999), the Court held that "[a] cross-racial instruction should be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability."

Here, as Judge Venable observed, the issue was not one of race, but of nationality. Moreover, there was substantial corroborating evidence in the form of the bank card. A.H. was in the cab with defendant for about forty minutes, and had ample opportunity to learn his face. When he was shown an eight panel photo array a week or so after his attack, A.H. quickly identified defendant as his attacker and was able to observe a small weight difference. When he made a second positive identification, it was from a photo of defendant taken only weeks earlier, and A.H. stated that the weight change was accurately reflected by that recent picture. Because this was not the situation contemplated in Cromedy, there was no error in trial counsel not seeking, and the trial court not giving, a cross-racial identification charge.

Wade Hearing

Defendant argues ineffective assistance of trial counsel for not requesting a Wade hearing. We disagree.

A Wade hearing may be requested by a defendant who contends that a pre-trial identification was unduly suggestive.

Here, presumably because A.H.'s identification of defendant came via police use of a photo array, the trial court confirmed with defendant's trial counsel that a Wade hearing had not been requested. Trial counsel stated that she chose not to because her trial strategy was to argue misidentification.

As there was no evidence of any impermissibly suggestive techniques in the assembly of the array, it was within trial counsel's purview tactically not to request a Wade hearing. Moreover, defendant's contention here does not meet the Strickland/Fritz standard, because trial counsel's line of inquiry with the State's witnesses consistently centered upon the make-up of the persons in the photo array. The jury heard that argument, and rejected it.

Defendant further contends that his appellate counsel was ineffective, but he provides no basis for such a contention. Absent examples of ineffective assistance, we discern no merit to this claim.

Vienna Convention

Defendant contends a violation of his rights under Article 36 of the Vienna Convention on Consular Relations (Convention), Apr. 24, 1963, [1970] 21 U.S.T. 77, 100-101, T. I. A. S. No. 6820, because he was not notified upon processing that he could have contacted the Ecuadorian Consulate. Judge Venable found that this claim was procedurally barred, but considered the merits anyway. We do the same, and agree with Judge Venable that the claim is without merit.

Article 36 of the Convention states, in pertinent part, that if a defendant so requests, "the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner." Art. 36(1)(b).

In Sanchez-Llamas v. Oregon, 548 U.S. 331, 337, 126 S. Ct. 2669, 2674, 165 L. Ed. 2d 557, 571 (2006), the Supreme Court held that, "even assuming the Convention creates judicially enforceable rights[,] . . . a State may apply its regular rules of procedural default to Article 36 claims." One of the combined appeals in that case asked the Court "to require the States to hear Vienna Convention claims raised for the first time in state post conviction proceedings." Sanchez-Llamas, supra, 548 U.S. at 359-60, 126 S. Ct. at 2687, 165 L. Ed. 2d at 584-85. However, the Court refused to do so because "the Convention itself imposes no such requirement." Sanchez-Llamas, supra, 548 U.S. at 360, 126 S. Ct. at 2687, 165 L. Ed. 2d at 585.

Defendant attempts to make that precise argument here. However, as correctly analyzed by Judge Venable, defendant did not raise this issue at anytime prior to his PCR petition, so his claim is procedurally barred as a matter of state law. Addressing the merits, Judge Venable added that the procedure of Central Judicial Processing is to inform all foreign nationals of their consular rights. The failure of defendant to offer any evidence that procedure did not occur rendered his claim without merit.

Affirmed.

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